Excerpt: ...erved a valid objection under C.C.P. Section 2025.410. (See C.C.P. § 2025.450(a); Defendants' Exhibit Index In Support of Motion to Compel, Exhibit D.) Although Defendants served a document captioned "Plaintiff Macy's West Stores, Inc.'s Objection to Notice of Taking Deposition of Plaintiff Macy's West Stores, Inc." on May 22, 2019 (id., Exh. G), the objections stated therein are not valid objections under section 2025.410. In particular, the pr...

Excerpt: ...y 7, 2014. A copy of the First Amended Complaint that Defendant Gruen filed on behalf of Plaintiff Jordan and her two children, Kelsie Weeden and Jordan Weeden, in Jordan, et al. v. City of San Jose, et al. (Santa Clara County Superior Court Case No. 113CV-241005), is attached to the Declaration of Defendant as Exhibit A. Plaintiff alleged in the underlying action that her late husband, Brian R. Weeden, a San Jose firefighter, was a participant i...

Excerpt: ...Jiang had no actual or constructive knowledge of the cause of her shoulder pain until her physician made a diagnosis months later. Defendants' Motion for Summary Judgment is granted because they have made the required prima facie showing that no triable issues of material fact remain regarding Plaintiffs' delayed discovery of their claim. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. Defendants have shown that no reasonable ju...

Excerpt: ...More specifically, the complaint in this action includes three causes of action against Katya. The First Cause of Action, for motor vehicle negligence, alleges that Vadim operated the motor vehicle that caused injuries to Plaintiff and that Vadim and Katya owned the motor vehicle which was operated with their permission. The Second Cause of Action, for general negligence, is asserted against both Vadim and Katya but alleges only that Vadim was ne...

Excerpt: ...opposition to the demurrer filed by Defendant Teslights Corporation ("TES"), that opposition did not address the instant demurrer and was not served on counsel for AOD. In addition to its being unopposed, the demurrer demonstrates that the FAC fails to plead a sufficient cause of action against AOD for negligence, including factual allegations (and not just conclusions) supporting the required elements that AOD owed Plaintiff a legal duty to use ...

Excerpt: ...omplaint alleges facts sufficient to state a cause of action or discloses a complete defense." (Id.) The Court assumes "the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Id.) "As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be,...

Excerpt: ... landlord to raise rents temporarily to recoup the amortized cost of a capital improvement. Its purpose is "to encourage landlords to improve the quality of their rental housing and to ensure that landlords receive a fair return on their capital expenditures." (Regulation 1267(A).) Ordinarily, capital improvement increases do not roll over to new tenants when the landlord re-hires the unit at market rate. (Regulation 1267(I)(1).) The only excepti...

Excerpt: ...action or proceeding." (CCP sec. 437c(a)(1).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact...

Excerpt: ...sanctions than on any other facet of the case. The court does not wish to encourage the filing of additional motions such as this, as the court believes the case should be set for trial so the parties can present their arguments at trial rather than in a series of pre-trial motions essentially arguing the merits. Nevertheless, as the court must address the motion on the merits, it does raise some valid arguments about the extent to which Plaintif...

Excerpt: ...m Plaintiff's assignors Ferguson Perforating Company ("Ferguson") and PDM Steel Service Centers, Inc. ("PDM"). Primus submits no evidence disputing Plaintiff's evidence that Primus entered contracts with Ferguson and PDM and is in default on those contracts, and indeed Primus admits that it is in default on the PDM contract in the principal amount of $41,043.46. In granting the writ of attachment, the Court accepts Primus' evidence and reduces th...

Excerpt: ...r "a contract implied by conduct," by which "Sanchez agreed to hold the title to the Property [at 5348 Treeflower Drive, Livermore] as the legal title holder while allowing Plaintiff to be the actual and equitable owner of the Property with sole use and control of the Property." (SAC, ¶ 41.) It further alleges: "For approximately six (6) years, Sanchez held the Property for the benefit of Plaintiff as agreed and consulted Plaintiff before taking...

Excerpt: ...e not filed any opposition to refute any of CSAA's arguments about the deficiencies in the complaint. Further, the demurrer makes a sufficient showing that the causes of action in the complaint are deficient as a matter of law. Among other things, the demurrer makes a sufficient showing that both causes of action in the complaint are time-barred. The First Cause of Action for breach of contract alleges that the parties entered a written agreement...

Excerpt: ...omply with Corporations Code section 2203(a). That is not a basis to overrule a demurrer, and in any event the Court already rejected this argument on June 26, 2019. The Court also rejects Plaintiffs' apparent argument that the demurrer should be overruled based on the failure of Capital One to meet and confer prior to filing the demurrer. That is not a basis to overrule a demurrer. (See Code of Civil Procedure section 430.41(a)(4).) The Demurrer...

Excerpt: ... certified, as is the case here, the Court must determine whether the case meets requirements for certification. (See Anchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 625-627.) The concerns of manageability and due process for absent class members, which counsel against class certification in a trial context, are eliminated or mitigated in the context of settlement. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1807 fn. 19.) Class certif...

Excerpt: ...0(a), is DENIED. The Court reviewed the parties' written submissions. Plaintiff correctly argues that the Motion to Compel must be denied because Defendants did not file it within 45 days of the date when the responses were served. See CCP § 2031.310(c). The Court does not have the authority to waive the 45-day requirement for Defendants. Plaintiff is also correct when she notes that counsel for Defendants did not comply with her meet-and-confer...

Excerpt: ...f Civil Procedure sections 128.5 et seq., 2023.030 et seq., the Discovery Act and the inherent authority of the court. The motion focuses on a letter and two declarations attributed to Fei Liu, Phebe's husband Tony's business partner, which Defendants assert contained text that was either mis-translated from the original Chinese or fabricated, as well as an incorrectly explained redaction in the letter. The letter was filed on July 24, 2018, in c...

Excerpt: ...discussed in the accompanying memorandum, the request is expressly based on Code of Civil Procedure section 664.6. Section 664.6 states in relevant part as follows: "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement...." The purpor...

Excerpt: ...oena directed to East West Bank dated August 1, 2018 (the "Subpoena"): (1) time-frame; (2) bank account number; and (3) protective order. As to time-frame, the Subpoena seeks "[a]ll banking records of Edward Chang dba Cafe Tapioca for its Pleasanton store from 7/1/2013 through January 31, 2016...." In an email from counsel for Plaintiffs Yushan Huang aka Stacy Huang and Joshua Hsia ("Plaintiffs") dated August 16, 2018, however, Plaintiffs agreed ...

Excerpt: ...red to - strike allegations that are irrelevant, false or improper as reflected on the face of the challenged pleading or matters of which judicial notice is taken. Thus, for example, a "motion to strike is widely used to challenge portions of causes of action seeking punitive damages" and its "use has also been approved in a case where the face of the complaint failed to state facts showing a primary right of the plaintiff and a primary duty of,...

Excerpt: ...ction. The Court exercises its discretion to permit Plaintiffs to allege a claim against Accurate Adjustments for "general negligence." The Motion is GRANTED as to the language "the court should consider during trail [sic] if the defendant actions between criminal assault and not just assault in causing apprehension and contact with the plaintiff" in the second paragraph of the Third Cause of Action. Accurate Adjustments shall file and serve its ...

Excerpt: ...r dismissed) and serving a seven-day notice to quit or remove Plaintiffs' dogs from the premises. Defendants now move to strike the allegations and demand for punitive damages and each of the causes of action in the Complaint. The challenged causes of action are counts that purport to state a right to recover under the following legal theories: (1) negligence; (2) nuisance; (3) violation of Civil Code ["CC"] sections 1941, 1941.1, 1942.5 and Heal...

Excerpt: ...missing all claims except those arising under the Labor Code Private Attorneys General Act of 2004 ("PAGA") (Labor Code §§ 2698 et seq.). Defendant Premier Valley, Inc. moves for transfer venue of this action under Code of Civil Procedure section 396b to Stanislaus County. Premier Valley argues that no defendant is domiciled in Alameda County and that Whitlach's claims arose in Stanislaus County because he was employed there. In a separate fili...

Excerpt: ...fice with documents and a computer disc containing medical records on May 8, 2019, the date specified in the request for production of documents. He allowed his documents to be copied. Safeway offers a statement of counsel that it never received verified responses to these requests as of the time it filed its motion papers. Novack is encouraged to seek representation from a competent personal injury attorney to avoid further delay or prejudice to...

Excerpt: ...h the voters intended Labor Code 887 to apply retroactively, retroactive application would interfere with Labor Code 226.7(c) payments, which the Supreme Court has held are "wages" in which employees have vested interests, so Labor Code 887 operates prospectively only; and (3) assuming Labor Code 887 operates retrospectively, it applies only to ground ambulances and the court has already held in the Final Statement of Decision filed 8/23/17 that ...

Excerpt: ...nt with the analysis in this order. On or before 7/24/19, the DSH may submit a supplemental opening brief to tax the costs asserted in the revised memorandum. On or before 8/7/19, petitioners may submit a supplemental opposition brief. On or before 8/14/19 the DSH may submit a supplemental reply brief. GENERAL RULE. CCP 1032(b) states that a prevailing party is entitled as a matter of right to recover costs. CRC 3.1700(a)(1) states that a memoran...

Excerpt: ...sible evidence demonstrating that it made a disclosure of its intent to require all disputes to be resolved by binding arbitration in compliance with Health & Safety Code § 1363.1. Kaiser's only evidence that it purportedly made that disclosure is the declaration of James Larreta-Moylan, but Mr. Larreta-Moylan admits that Kaiser had not been able to locate any screen-prints showing the actual, entire Conditions of Acceptance/Arbitration Agreemen...

Excerpt: ...26.7, 512), accurate wages statements, and waiting time penalties (Labor Code 201-203), and claims under the UCL. The First Amended Complaint also asserts a PAGA claim on behalf of the LWDA for penalties (Labor Code 2699). On 3/1/19, the court denied the motion of Daylight to compel plaintiffs to arbitrate their individual claims. The court found that the Independent Contractor Agreements are contracts evidencing a transaction involving commerce ...

Excerpt: ...at an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) grounds exist for the revocation of the agreement." (Code Civ. Proc. § 1281.2.) EXECUTED OF ARBITRATION AGREEMENT Plaintiffs argue that the Arbitration Agreement ("Agreement") was not signed by both parties and is therefore not a valid agreement, especially because the phrase in the Agreeme...

Excerpt: ...closure sale. The building's prior owner had operated the building as an apartment house, but the units were converted to condominiums before being sold to Fong and Lee. The same tenants remained in the condominium units (formerly apartments) and were unaware that a conversion had even occurred. Fong and Lee applied for exemption from the RAP on the grounds that the units were condominiums exempt from local rent control under the Costa-Hawkins Ac...

Excerpt: ... termination, failure to maintain required records, and failure to furnish accurate pay statements. In addition, the PAGA Action asserts claims for failure to pay minimum wages, failure to timely pay wages during employment, failure to indemnify employees for work- related expenses The court DENIES the motion to consolidate the two cases. CCP 1048(a) states, "When actions involving a common question of law or fact are pending before the court, it...

Excerpt: ...because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon." (Id.) Further, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to ma...

Excerpt: ...ison (1998) 18 Cal.4th 739, 758 ["The case management tools available to trial courts [includes] the inherent authority to stay an action when appropriate"]; Bailey v. Fosca Oil Co., (1963) 216 Cal.App.2d 813, 817 ["the power of a court to stay proceedings ... was inherent at common law and is now vested in the superior courts of this state"].) The relevant criteria for the Court to consider vary with the reason for the stay and the scope of the ...

Excerpt: ...1, 1149-1150; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.) Nevertheless, as the court stated in CLD Construction, supra, even where an answer is improperly filed by an unrepresented corporation, the court should give notice to the corporation that it needs to retain new counsel promptly and that if it fails to do so its pleadings can be stricken. (Id.) Here, the answer filed by Defendant 360 IT Professionals, Inc. ("360 IT"), on February...

Excerpt: ...f Wages: Reply Tentative Ruling" to be Plaintiff's amended pleading. The court finds that the pleading is uncertain as drafted and fails to states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e) and (f); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The court had previously sustained Defendant's demurrer to the Complaint and amended comp...

Excerpt: ...f both housekeepers and housekeeper mangers. A counsel for the housekeepers, Nourmand would need to cross-examine the housekeeper mangers. Although the housekeepers and housekeeper mangers do not have adverse claims, the housekeeper mangers, or some of them will likely be adverse witnesses to the claims of the housekeepers. This presents an "adequacy of class counsel" issue that can be identified and addressed on the pleadings." Following this or...

Excerpt: ...may promptly move for a protective order," and the "court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense," including "(5) [t]hat a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way." (C.C.P...

Excerpt: ... The motion is CONTINUED for the parties to meet and confer in person or telephonically in a good faith effort to resolve the discovery dispute on an item-by- item basis. First, although the motion is entitled a "motion for sanctions" it appears that Plaintiff is objecting to the amended responses served by Defendant after the court granted in part Plaintiff's two motions to compel. If Plaintiff believes the responses are insufficient or in viola...

Excerpt: .... The sole cause of action against Doe 1 is the First Cause of Action for negligence, which alleges that Shadow Woods Homeowners Association ("Shadow Woods"), Associa Northern California ("Associa") and Does 1 through 20 "carelessly and negligently used, controlled, maintained, and/or inspected THE PREMISES where plaintiff JIAN HE was injured, so as to permit a broken, cracked, or defective tree to remain in use. This created a dangerous and unsa...

Excerpt: ...th the vehicle despite having sufficient opportunity to do so. Defendant was served with the Complaint on June 4, 2018. Defendant answered the Complaint on July 16, 2018. On February 4, 2019, the Court set the trial date after receiving input from counsel for Plaintiff and Defendant. Counsel were advised that the Court considered the trial date to be firm and that it would not likely change it. Defendant has not shown good cause for the trial con...

Excerpt: ...h cause of action for breach of the express warranty of merchantability. Defendant's Demurrer is SUSTAINED WITH LEAVE TO AMEND. As written, the Complaint's fifth cause of action fails to state a cause of action upon which relief can be granted. (See CCP § 430.10(e); but see Angie M. v. Sup. Ct. (1995) 37 Cal.App.4th 1217, 1227 ["Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been [previously] ...

Excerpt: ...fenses to the five existing causes of action in the SAC, including pleading "ultimate facts" (not just legal conclusions) supporting such affirmative defenses and "refer[ring] to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished." (C.C.P. § 431.30(g); see also FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 [affirmative defenses should be "averred as carefully an...

Excerpt: ...LLC, and Fairmont Hotel Management Company's ("Claremont Defendants") Demurrer to Plaintiff Jane Doe's ("Plaintiff") First Amended Complaint ("FAC") is SUSTAINED WITH LEAVE TO AMEND IN PART AND OVERRULED IN PART. Plaintiff shall file an amended complaint no later than July 2, 2019. Plaintiff brought this action against Defendants based on an incident in which she claims that Defendant Janvier Bubanje ("Bubanje") blindfolded her and touched her in...

Excerpt: ...e), WITH LEAVE TO AMEND to allege facts sufficient to constitute a cause of action against one or both Defendants for intentional infliction of emotional distress, including specifying the "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causati...

Excerpt: ...s the Third Amended Complaint because Plaintiffs did not comply with the Court's order of February 7, 2019. Plaintiffs again asserted the Third Cause of Action for Open Book Account. In the February 7, 2019 order, the Court noted, "Counsel is also advised that he may not include the Third Cause of Action for Open Book Account [without consent from Defendant or prior court approval]." The Court specifically advised in the July 31, 2018 order that ...

Excerpt: ...oyer. This Court has no jurisdiction over Plaintiff's claim asserted in this case. The Workers' Compensation Appeals Board has exclusive jurisdiction over any matter concerning the recovery of workers' compensation benefits. (See Labor Code section 5300(a).) Any challenge to a decision by the Workers' Compensation Appeals Board must be brought before the California Court of Appeal or the California Supreme Court. (See Labor Code section 5955 and ...

Excerpt: ...imation of plaintiff's total recovery and the settlor's proportionate liability, the amount paid in settlement, . . . a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial, . . . the financial conditions . . . of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants." (Tech-Bilt, Inc. v. Woodward-Clyde ...

Excerpt: ...sponses to the Requests for Admission, Set One ("RFAs"), served on Plaintiff (while she represented herself) on March 11, 2019. Nevertheless, on April 19, 2019, Plaintiff substituted counsel Dolores Victor as her attorney of record, and on May 8, 2019, Plaintiff served Defendant with verified responses to the RFAs, without objections. The court has reviewed those responses and determines that they are "in substantial compliance with [C.C.P.] Sect...

Excerpt: ..."Defendant"). At this time, the Court is generally prepared to grant final approval of the terms of the Settlement Agreement and the incentive awards, but requires further information before it can approve the attorney's fees requested. The Court has a "fiduciary responsibility as guardian[] of the rights of the absentee class members when deciding whether to approve a settlement agreement." (Duran v. Obesity Research Institute, LLC (2016) 1 Cal....

Excerpt: ...RD OF LAW "[T]he court, upon motion reasonably made by [a party] . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders." (CCP § 1987.1(a).) "In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the...

Excerpt: ...aintiff's Complaint, specifically allegations regarding punitive damages and certain attachments to the Complaint. Defendant's Motion to Strike is GRANTED IN PART WITH LEAVE TO AMEND. Plaintiff shall file an amended complaint no later than July 8, 2019. (See CRC 3.1320(g); see also Angie M. v. Sup. Ct. (1995) 37 Cal.App.4th 1217, 1227 ["Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been [previ...

Excerpt: ...The requests for exemplary damages, as well as the allegations to the effect that Defendants' actions were "malicious, fraudulent, and oppressive," are conclusory and deficient as currently pleaded. Though Plaintiff incorporates all allegations in paragraphs 1 to 41, the allegations therein describe conduct by Defendants that, as a general matter, was negligent or in violation of habitability requirements. (See, e.g., Complaint, ¶ 35 ["Defendant...

Excerpt: ...nable time," in no case exceeding six months, after such judgment, order, or proceeding was taken. This motion was not timely filed under CCP §473(b), as it was not filed within six months after default was entered on 10/9/18. Alternatively, Mr. Stapper seeks relief under CCP §473.5, on the ground that he lacked actual knowledge of this action in time to defend. Under CCP §473.5, a party may seek relief from a default judgment where service of...

Excerpt: ...d required by the CJ complies with Health & Safety Code sections 25249.6 and 25249.10(c); (B) the warning required by the CJ is clear and reasonable in compliance with Health & Safety Code section 25249.6; (C) the reimbursement of $11,000 for fees and costs to be paid to Plaintiff's outside counsel and $21,356.50 (including $10,000 to be paid to reimburse Moore Law Firm, P.C.) for fees and costs to be paid to Plaintiff for its in-house legal expe...

Excerpt: ...ion asserting Defendant's counsel "has endeavored and continues to endeavor to provide the requested discovery despite lacking and inconsistent cooperation from [D]efendant." (Def.'s Opp., p. 1.) This is descriptive, but it is not an opposition based in the law. For Plaintiff's part, evidence has been offered that the discovery requests were served and Defendant did not respond completely to the requests, specifically noting Defendant has failed ...

Excerpt: ...itial Complaint against her former client, Noreen Cardinale, and her former co-counsel, Martha Louise Caron, on January 20, 2015. The case was scheduled for trial on November 28, 2016, but that trial date was vacated on October 31, 2016 because the settlement judge requested it and because Plaintiff Bush filed a late Motion for Judgment on the Pleadings as to the Cross-Complaint of Noreen Cardinale. Cross-Complainant had filed her First Amended C...

Excerpt: ...n particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense."].) Plaintiff argues that if the court permits defendants leave to amend , then the court should permit plaintiff to supplement a claim in the complaint. (Oppo filed 5/30.) CCP 473(a) permits amendments "on terms as may be just." The court is inclined to grant the motion of defendants to file ...

Excerpt: ...oward v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428. Defendant 24 Hour Fitness USA, Inc. has not shown that it will be unduly prejudiced by the late request for leave to amend. See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488. The trial date is September 9, 2019. Defendant has not shown that it will not have time to conduct the discovery necessary to respond to Plaintiff's prayer for an award of punitive damages. F...

Excerpt: ...ceived by Plaintiff on April 25, 2019. In any future discovery motions filed in this case, Plaintiff should include the discovery, and the opposing party's responses, with the moving papers. Plaintiff argues that DeSilva Gates has waived all objections to Request for Production of Documents, Set Three because those responses were not timely served. The Court is unable to reach that conclusion, because neither Plaintiff nor DeSilva Gates has submi...

Excerpt: ...er 13, 2018. The First Cause of Action (breach of contract) alleges that WFB and Defendant entered into a written contract attached as Exhibit 1 to the complaint - i.e. a Consumer Credit Card Customer Agreement & Disclosure Statement - that required Defendant to make timely payments for the moneys advanced by WFB, and that Defendant breached the agreement by failing to pay as agreed, causing damage in the amount of $10,935.35, plus attorney's fee...

Excerpt: ...ice under CCP §1161(2), and no such notice is alleged in the FAC, and (2) the FAC is uncertain because it alleges $292,298.45 in past-due rent, while the attached five-day notice states the amount due as $191,193.82. NOTICE REQUIREMENT IN LEASE Paragraph 19.1.1 of the Lease states that an "Event of Default" occurs with "Any failure by Tenant to pay any Rent or any other charge required to be paid under this Lease, or any part thereof, when due u...

Excerpt: ...iff's right to recruit current and former Medidata Solutions employees who signed non-compete agreements; (2) declaratory relief regarding plaintiff's obligation and right to defend and indemnify its employees who previously worked for Medidata Solutions; (3) declaratory relief regarding enforceability of the Medidata Solutions non-compete agreements; (4) declaratory relief regarding plaintiff's rights when Medidata Solutions threatens to enforce...

Excerpt: ...rate Statement filed by Defendant and Cross- Complainant Irvington Baptist Church dba Crossroads Church of Fremont ("Crossroads"). More specifically, while the text of Special Interrogatories, Set Three, Nos. 1 and 2 is the same in both Separate Statements, the text of Special Interrogatories, Set Three, Nos. 3-22 is different (and Crossroads does not address Special Interrogatories, Set Three, Nos. 23-31 in its Response Separate Statement.) Neit...

Excerpt: ...ght an ex parte application to shorten time. It is a violation of due process to grant a motion against a party who did not receive timely and adequate notice in the manner prescribed by law. (See Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) Defendant and Cross-Complainant Tamara Taylor Reeder correctly objected to Eichman's error on May 13, 2019. Eichman's May 16, 2019 amended notice did not sufficiently cure the error because it was served a...

Excerpt: ...foreclosure because Plaintiff is allegedly not in default of its obligations secured by the underlying deed of trust. FACTUAL BACKGROUND Plaintiff purchased the Property on December 9, 1988, with the intent to subdivided it and develop nine single family homes (the "Project"). Plaintiff obtained a construction and development loan from Bay Bank in the amount of $1,837,500. In January 2004, Plaintiff refinanced the loan ("Bank Loan") with Valley C...

Excerpt: ...ff Presented Sufficient Evidence to Support That Defendant Was Negligent." (Pltf.'s Memo., p. 4:12-14.) Plaintiff's framing makes it sound as though the Court could order a new trial simply because reasonable minds could differ on the question of negligence in this case. However, that is not the standard of section 657. Section 657 requires that "[a] new trial shall not be granted upon the ground of insufficiency of the evidence to justify the ve...

Excerpt: ...n limine ruling deprived her of a potential comparative fault defense. At trial, the jury found that Plaintiff proved Defendant was negligent in an accident with Plaintiff on the afternoon of June 10, 2016, and that her negligence was a substantial factor in causing injuries to Plaintiff. At the time of the accident, Plaintiff was riding a bicycle eastbound on Gilman Street in Berkeley, California. He was not wearing a bicycle helmet. Defendant w...

Excerpt: ... alleged in the Complaint. The court finds that the claims arise out of the same occurrence. Further, although there has been a delay, Defendants have adequately provided the reasons for not initially filing the compulsory cross-complaint and the delay due to a variety of factors. The court is required to grant leave "as long as defendant is acting in good faith." (C.C.P. § 426.50) "A policy of liberal construction of section 426.50 to avoid for...

Excerpt: ...s who allege that they are current and former residents of a housing complex in Oakland, California, known as the MacArthur Apartments (the "Property"). Plaintiffs allege that Defendants failed to address or repair certain defects and dangerous conditions at the Property. Amcal Defendants demur to the Fourth Cause of Action for breach of contract for failure to state a cause of action. The Court had previously sustained with leave to amend Defend...

Excerpt: ...(1)(B).) "The grounds for [the] motion . . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (CCP sec. 438(d).) Here, Plaintiff's Complaint does not state facts sufficient to constitute a cause of action against Defendant. While nominally for breach of contract, the Complaint fails to provide sufficient information to understand the cause of action asserted. At one po...

Excerpt: ...e to the Labor and Workforce Development Agency ("LWDA") of the "facts and theories" supporting their allegations of Defendants' alleged Labor Code violations. (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 835-838 [citing Lab. Code § 2699.3(a)(1)(A)].) Adequate notice to LWDA is a mandatory prerequisite to a Private Attorneys General Act of 2004 ("PAGA") action. (Id.) Plaintiffs' claims are all distinguishable from the sole conclusory ...

Excerpt: ... reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied. (See Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68.) In her motion, Plaintiff argues that Defendant was negligent at the time of the accident because she violated one or multiple of Vehicle Code sections 21460, 22350, or 21801, which relate to crossing double yellow lines, speeding, and yielding, respectively. However, simp...

Excerpt: ...y, "Defendants") request for reimbursement of reasonable out-of-pocket travel expenses associated with Plaintiffs' cancellation of the April 25, 2019 mediation is GRANTED. For the purpose of determining the exact amount of such reimbursement, the hearing on this Motion is CONTINUED to 9:00 a.m. on June 18, 2019 in Department 16, as further explained below. Since the parties and attorneys in this action are so widely dispersed geographically and i...

Excerpt: ...the ground that there is a another action pending is SUSTAINED. In the First Cause of Action, Plaintiff seeks to quiet title to a month-to-month tenancy at 7203A Holly Street, Oakland, and the Second Cause of Action seeks a declaration that Plaintiff owns has month-to-month tenancy. Plaintiff does not seek to establish an ownership in interest in the real property, but merely the right to reside there as a tenant. Defendant Dellesia Onifade's com...

Excerpt: ...f Wages: Reply Tentative Ruling" to be Plaintiff's amended pleading. The court finds that the pleading is uncertain as drafted and fails to states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e) and (f); Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238. ) The court had previously sustained Defendant's demurrer to the Complaint and amended comp...

Excerpt: ...mary judgment. LEGAL STANDARD "A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (CCP sec. 437c(a)(1).) "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4t...

Excerpt: ... 437c(p)(1); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at 851.) Defendant has no obligation to present any affirmative evidence to show that a hypothetical reasonable jury could find in its favor until plaintiff has met its initial evidentiary burden. (Id. at 850.) Material facts are "fact that relate to the cause of actio...

Excerpt: ... ORDERED THAT sanctions in the amount of $2,800.00 is payable by Defendant to Plaintiff. (CCP §§ 2023.010(d), 2023.030 [authorizing monetary sanctions against a party for failing to respond to discovery].) REQUEST FOR PRODUCTION Plaintiff served a Request for Identification and Production of Documents on July 31, 2018 (the "Request"). After several extensions were granted by Plaintiff, Defendant served responses to the Request on October 5, 201...

Excerpt: ...fendant failed to provide discovery responses in violation of the Court's March 23, 2018 and June 21, 2018 Orders. DISCOVERY ORDERS On December 11, 2017, Plaintiff served three sets of form interrogatories and three sets of demands for production on: (1) Dellesia Onifade, individually; (2) Dellesia Onifade, as administrator of the estate of Jerlyn Smith; and (3) Dellesia Onifade, as trustee of the Jerlyn Smith Trust. When Defendant failed to resp...

Excerpt: ... ("Marin County"). (See Decl. of Mathew Stephenson, Exh. B ["Subpoenas"]). The first two Subpoenas seek a subset of Plaintiff's medical records (from Kaiser) and therapeutic records (from Dr. Cohen, a licensed clinical social worker) in the date range of 1/01/2016 to 12/31/2017. The third Subpoena seeks a subset of Plaintiff's personnel records from her work with Marin County from January 1, 2012 through March 30, 2015, prior to her work with the...

Excerpt: ...-Complainant shall file and serve a reply brief no later than June 25, 2019. Cross-Complainant alleges that counsel for Cross-Defendant Melva Fonteno ("Cross- Defendant"), Gia Austin Carroll, obstructed two deposition subpoenas issued by the Court on December 18 and 26, 2017, by writing to the subpoenaed parties in letters dated January 9, 2018, instructing them not to obey the subpoenas. Cross- Complainant seeks an order to show cause why Cross-...

Excerpt: ...-Complainant shall file and serve a reply brief no later than June 25, 2019. Cross-Complainant alleges that counsel for Cross-Defendant Melva Fonteno ("Cross- Defendant"), Gia Austin Carroll, obstructed two deposition subpoenas issued by the Court on December 18 and 26, 2017, by writing to the subpoenaed parties in letters dated January 9, 2018, instructing them not to obey the subpoenas. Cross- Complainant seeks an order to show cause why Cross-...

Excerpt: ...3.1700(b)(2).) Plaintiff's motion is GRANTED IN PART as follows: First, the Court does not find the memorandum of costs' entry for jury fees to be unreasonable and does not exercise any discretion to strike or tax such costs. Plaintiff has provided no evidence or even specific argument regarding why she feels this cost is too high. The case clearly went to trial, and no argument has been made that jury fees were not incurred. Absent more, the Cou...

Excerpt: ...cts and dangerous conditions at the Property. Amcal Defendants seek to strike the portions of the Fifth Amended Complaint ("FAC") that allege punitive damages and references to the written residential agreements and contractual attorney's fee allegations should their accompanying Demurrer be granted. The Court shall address the punitive damages issue in this ruling, and shall address the other allegations in the ruling on the Demurrer. The Court ...

Excerpt: ...tiff's attempts to purchase the subject real property. Specific performance of the real property purchase was the subject of a prior lawsuit also brought before the Superior Court of California, County of Alameda as Guinnane v. Peterson, RG17861212 (the "Specific Performance Action"). In the Specific Performance Action, of which Chess was not a party, Plaintiff was successful. Pursuant to Code of Civil Procedure sections 435(b)(1) and 436(a), Che...

Excerpt: ...ing to the terms and conditions of such agreement to binding arbitration...." (Notice, p. 2.) Section 1281.5, cited in the notice of motion, refers to circumstances were a person "proceeds to record and enforce a claim of lien by commencement of an action pursuant to Chapter 4 (commencing with Section 8400) of Title 2 of Part 6 of Division 4 of the Civil Code...." The instant action alleges that Plaintiff Pacific Data Electric, Inc. ("PDE") "reco...

Excerpt: ...ion in this case and that they would be prejudiced by having to litigate this case before the appeal is decided. Plaintiff Chow offers evidence that he is ill and that delay may result in the loss of evidence. The Court has discretion to stay a case in its entirety in the interest of justice. (CCP § 187; Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758 ["The case management tools available to trial courts [inc...

Excerpt: ... amount of $1,000 for rental assistance for Plaintiff. (Declaration of Gia Austin-Carroll ("Austin Dec."), Ex. 1 at p. 6.) Plaintiff asserts that it is undisputed that the $1,000 was paid by the American Red Cross, and that Ms. Smith acknowledged receipt of the $1,000, and she later confirmed that the full $1,500 security deposit was paid. Plaintiff asserts that her tenancy terminated in October 4, 2016. Defendant Dellesia Onifade's ("Defendant")...

Excerpt: ...y deponents (the "third parties" or "deponents") on or around March 22, 2019, as follows: 1. Everbank.com c/o Everbank Wealth Management for records of Ariel Feingold 2. Fremont Bank for records of Vivian Meade 3. Homestreet Bank for records of Alison Roberts 4. Homestreet Bank for records of Corynne Condon 5. Old Republic Title Company for records of Corynne Condon 6. Old Republic Title Company for records of Ariel Feingold 7. Old Republic Title...

Excerpt: ...the County of San Joaquin ("SJHA"). Plaintiff also seeks a protective order, and for expenses and sanctions in the sum of $4,110. STANDARD OF LAW "[T]he court, upon motion reasonably made by [a party] . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders." (CCP § 1987.1(a).) "In addition, the court may make any o...

Excerpt: ...solidation will "tend to avoid unnecessary costs or delay." See CCP § 1048(a). Defendants have not made the required showing in support of their motion. Case No. RG18895596 involves a dispute among family members regarding ownership of residential real property. This case involves the parties' respective interests in a Mobil gas station. The Court notes that no party filed a Notice of Related Case. See Rule of Court 3.300(b). Defendants' content...

Excerpt: ...n January 31, 2019 on May 16, 2019. Counsel for Defendant states in the reply that the discovery response are sufficient. Counsel also confirms that responsive documents have been produced. Counsel maintains, however, that the Court should make an award of monetary sanctions despite Plaintiff's late compliance. Plaintiff's objection to the Motion to Compel on procedural grounds is overruled. Defendant correctly identified the issues presented in ...

Excerpt: ...Smith; and (3) Dellesia Onifade, as trustee of the Jerlyn Smith Trust. Plaintiff previously stipulated to an extension for Defendant's response to January 31, 2018 and then February 19, 2018. When Defendant still failed to respond, the parties participated in an informal discovery conference on March 6, 2018, and the Court ordered Defendant to respond on or before March 31, 2018. Defendant provided some discovery responses on March 30, 2018. With...

Excerpt: ...ons. The issues in this motion overlap to a large extent with those raised in Plaintiff's accompanying motion to quash subpoenas, so the court's ruling on this motion draws on the court's discussion of the issues and law in its accompanying order. As to RPDs Nos. 23 and 24, the motion is GRANTED, for the reasons in the accompanying order. As to RPD No. 30, the motion is DENIED, conditioned on Plaintiff's execution of a stipulation in the form des...

Excerpt: ...rties' meet and confer efforts. Based on the attached emails from Eduardo Robles dated May 20, 2019, and from Candice Hamant dated May 30, 2019, it appears that CBRE is in the process of assembling what Plaintiffs characterized as "[a]ll work orders/emails for the Saratoga Center - Building Two located at 5934 Gibraltar Dr., Pleasanton, CA 94588 for 2014 to 2016, dealing with the bathrooms, restrooms, men's room, ladies rooms, lavatory, facilitie...

Excerpt: ...s v. Marin (2000) 80 Cal.App.4th 380, 386-387.) "The purpose of section 474 is to enable a plaintiff to avoid the bar of the statute of limitations when he [or she] is ignorant of the identity of the defendant." (Id.) Section 474 allows a plaintiff to file a Doe amendment that relates back to the timely filing of the operative complaint. (Id.) If the statute of limitations had not already run as of the date the Doe amendment was filed, then secti...

Excerpt: ...does not limit the applicability of section 1788.61 to debts purchased before 1/1/14, attaching copies of legislative reports regarding the intended effect of §1788.61. (Reply, Exh.A., B.) Under the plain language of Civil Code 1788.61(d), "This section shall apply to a default or default judgment entered on or after January 1, 2010, except in the case of identify theft or mistaken identity, in which case this section shall apply regardless of t...

Excerpt: ...fication and preliminary approval of class action settlement is hereby CONTINUED to Monday, July 15, 2019, at 3:00 P.M. A. Written objections should not be required to appear at hearing The parties' Stipulation and Settlement Agreement ("Settlement Agreement"), in paragraph 4.4.1, purports to require objectors to submit a written statement of objection within 60 days of the mailing of notice or waive their right to appear at the final approval he...

Excerpt: ... except" those specifically denied. (Answer at p.1, ¶ 2.) The only substantive assertion in the answer is that Phetphomassouk "do[es] not have enough income to make payment." Phetphommasouk has not filed papers opposing this motion. He is encouraged to seek counsel experienced in debt collection defense to avoid future prejudice to his case. For the reasons stated below, BANA's motion is GRANTED WITH LEAVE TO AMEND. LEGAL STANDARDS A plaintiff m...

Excerpt: ...bers. The motion for final approval was heard on March 21, 2019, and continued to today because of the Court's concerns regarding insufficient service of class notice. Class counsel, acting as settlement administrator, has declared that he has since identified mailing addresses for the remaining un-notified class members and has transmitted class notice. Counsel further reports that none of these four class notices has been returned as undelivera...

Excerpt: ...b) failure to pay minimum wages, (c) failure to provide meal and rest breaks, (d) failure to provide accurate wage statements, (e) failure to maintain accurate payroll records, (f) failure to pay all wages earned, (g) failure to pay earned wages at termination, (h) failure to provide one day's rest in seven, (i) failure to provide reporting time pay, (j) failure to provide adequate seating, (k) failure to reimburse for necessary business expenses...